N.M. R. Evid. 11-802
Hearsay is not admissible except as provided by these rules or by other rules adopted by the Supreme Court or by statute.
N.M. R. Evid. 11-802
Committee commentary. - The title of this rule was amended in 2012 to be consistent with other amendments made at that time to Article 8 of these rules.
[Adopted by Supreme Court Order No. 12-8300-015, effective for all cases pending or filed on or after June 16, 2012.]
ANNOTATIONS The 2012 amendment, approved by Supreme Court Order No. 12-8300-015, effective for all cases pending or filed on or after June 16, 2012, rewrote the title of the rule to make stylistic changes. Compiler's notes. - This rule is similar to Rule 802 of the Federal Rules of Evidence. I. GENERAL CONSIDERATION. Hearsay rule and the Confrontation Clause. - The hearsay rule and the Confrontation Clause are not co-extensive. The hearsay rule is intended to ensure that the jury is not exposed to unreliable evidence, even when the declarant testifies at trial and is subject to cross-examination. The Confrontation Clause guarantees the accused in a criminal trial the right to be confronted with the witnesses against the accused, regardless of how trustworthy the out-of-court statement may appear to be. State v. Mendez, 2010-NMSC-044, 148 N.M. 761, 242 P.3d 328, rev'g 2009-NMCA-060, 146 N.M. 409, 211 P.3d 206, and overruling in part State v. Ortega, 2008-NMCA-001, 143 N.M. 261, 175 P.3d 929. Rule not applicable to probation revocation proceedings. - The Rules of Evidence do not apply to proceedings to revoke probation and, for the proper usage of hearsay in such proceedings, a court looks to the law not involving these rules. State v. Vigil, 1982-NMCA-058, 97 N.M. 749, 643 P.2d 618. Rule not applicable to judicial review hearings. - The trial court did not err by basing its findings in a judicial review hearing on the termination of parental rights on hearsay evidence. State ex rel. Children, Youth & Families Dep't v. Vanessa C., 2000-NMCA-025, 128 N.M. 701, 997 P.2d 833, cert. denied, 128 N.M. 690, 997 P.2d 822. That information was hearsay does not destroy its role in establishing probable cause. State v. Deltenre, 1966-NMSC-187, 77 N.M. 497, 424 P.2d 782, cert. denied, 386 U.S. 976, 87 S. Ct. 1171, 18 L. Ed. 2d 136 (1967). The hearsay rule is not a best-evidence rule stating that only the declarant should be permitted to testify as to what the declarant said; other real or testimonial evidence can be used to establish that fact. State v. Glen Slaughter & Assocs., 1994-NMCA-169, 119 N.M. 219, 889 P.2d 2544). Harmful error. - Where defendant was charged with first-degree murder; defendant claimed the defendant was acting in self-defense; to support its theory of deliberate murder, the state introduced the victim's diary into evidence to show that defendant was increasingly violent and controlling towards the victim, including specific acts of domestic violence against the victim; the diary was inadmissible hearsay; the state's theory of deliberate murder depended on the diary; the state emphasized the diary in the presentation of its case, cross-examined defendant about the diary, and relied on the diary in its closing argument; and without the diary, the state could offer only weak circumstantial evidence to create an inference of willful deliberation, the admission of the diary into evidence was harmful error. State v. Leyba, 2012-NMSC-037, 289 P.3d 1215. II. ADMISSIBILITY. Improper admission for impeachment purposes. - Where, for purposes of impeaching the defendant's credibility, the prosecutor questioned the defendant about statements made by out-of-court declarants that the defendant was their source for drugs, the questions were prejudicial to the defendant because they implied that the state had evidence that the defendant had distributed drugs on prior occasions. State v. Montes, 2007-NMCA-083, 142 N.M. 221, 164 P.3d 102. Extrajudicial statements properly received when establishing knowledge of hearer. - Extrajudicial statements or writings may properly be received into evidence, not for the truth of the assertions therein contained, or the veracity of the out-of-court declarant, but for such legitimate purposes as that of establishing knowledge, belief, good faith, reasonableness, motive, effect on the hearer or reader and many others. State v. Alberts, 1969-NMCA-064, 80 N.M. 472, 457 P.2d 991. Evidence was clearly hearsay and clearly prejudicial where its sole effect, insofar as defendant was concerned, was to have her branded as a known, or at least as a suspected, violator of the laws relating to marijuana. State v. Alberts, 1969-NMCA-064, 80 N.M. 472, 457 P.2d 991. It was reversible error to admit hearsay testimony that narcotics agent had been told by local police more than a month prior to defendant's arrest that defendant was involved in the illegal traffic of marijuana. State v. Alberts, 1969-NMCA-064, 80 N.M. 472, 457 P.2d 991. Admission of hearsay harmless when issue immaterial. - Admission of hearsay testimony concerning patient's failure to follow doctor's instructions was harmless error since the issue was immaterial. Crouch v. Most, 1967-NMSC-216, 78 N.M. 406, 432 P.2d 250. Testimony labeling defendants "trafficking" to show investigation's purpose inadmissible. - The naming of defendants as persons engaged in "illegal marijuana traffic," for the purpose of showing why policeman conducted an investigation, was not a legitimate reason for admitting this extremely prejudicial testimony. State v. Alberts, 1969-NMCA-064, 80 N.M. 472, 457 P.2d 991. Statements of unidentified witness after accident are hearsay. - Where police officer testified that an unidentified witness at the scene of automobile collision told him that the car in which plaintiff was riding had passed him at an excessive rate of speed and just prior to the accident, this testimony was hearsay and did not fall within the exceptions to the hearsay rule. Torres v. Sierra, 1976-NMCA-064, 89 N.M. 441, 553 P.2d 721, cert. denied, 90 N.M. 8, 558 P.2d 620. Deposition containing largely hearsay and irrelevant matter properly refused. - Where a deposition, and the portions thereof which were offered on rebuttal, included matters which were largely hearsay and matters which could not possibly relate to the question at issue, it was properly refused. Glass v. Stratoflex, Inc., 1966-NMSC-153, 76 N.M. 595, 417 P.2d 201. Tendered deposition refused if includes inadmissible matters. - Assuming only for the sake of argument that there were some portions of the deposition which might have been properly admitted for the purpose of establishing either notice or knowledge on the part of the defendant, either as a part of plaintiffs' case in chief, or by way of rebuttal, the plaintiffs could be heard to complain of the court's refusal of their tenders, when the tenders included inadmissible matters. Glass v. Stratoflex, Inc., 1966-NMSC-153, 76 N.M. 595, 417 P.2d 201. Independent medical examination report in workers' compensation case, as stand-alone evidence, deemed inadmissible hearsay. - In a workers' compensation case, an independent medical examination report (IME), offered by an employer as evidence of the truth of the assertion that worker had reached maximum medical improvement with an impairment rating of zero percent, constitutes hearsay subject to no exceptions in the rule, statutes or regulations. The workers' compensation judge erred in admitting the IME and relying on it as the basis for determining that worker reached maximum medical improvement with a zero percent impairment rating. Valenzuela v. A.S. Horner, Inc., 2016-NMCA-031, cert. denied. Testimony concerning declarant's out-of-court statements inadmissible when declarant did not testify. - Prior to enactment of rules of evidence, where spouse did not testify as to value of certain community property in divorce action, an accountant's deposition statements as to what were claimed to be the spouse's personal opinion as that value were improperly admitted, because even if those values were those of the defendant, the accountant's deposition testimony was hearsay, being the testimony of a witness as to out-of-court statements of a declarant who was not a witness as to that specific subject matter. Lahr v. Lahr, 1970-NMSC-165, 82 N.M. 223, 478 P.2d 551. Evidence of out-of-court utterance admissible to prove utterance made. - If the fact that a statement was made becomes relevant to an issue in the case, evidence of an out-of-court utterance of the statement is admissible, not for the purpose of proving the truth of the matter stated, but merely for the purpose of establishing the fact that the statement was made. Glass v. Stratoflex, Inc., 1966-NMSC-153, 76 N.M. 595, 417 P.2d 201. Rule that out-of-court utterance admissible to prove utterance made does not embrace telephone calls and other communications from unknown and unnamed persons concerning reputed ruptures in wire braid hoses which were not relevant to the issue of notice or knowledge by the defendant of inherent danger in its product. Glass v. Stratoflex, Inc., 1966-NMSC-153, 76 N.M. 595, 417 P.2d 201. Another's utterance offered to show ensuing state of mind admissible. - An utterance by one person, which is offered only to evidence the state of mind which ensued in another person in consequence of the utterance, is admissible insofar as the hearsay rule is concerned. However, the state of mind which ensued as a result of the utterance must be relevant to an issue in the case. Glass v. Stratoflex, Inc., 1966-NMSC-153, 76 N.M. 595, 417 P.2d 201. Public record is admissible after authentication and proof of admissibility under hearsay exceptions. State v. Ellis, 1980-NMCA-187, 95 N.M. 427, 622 P.2d 1047. Public records to be authenticated before admitted. - Unless they fall within the narrow exception for self-authenticating documents, public records must be authenticated prior to admission into evidence. State v. Ellis, 1980-NMCA-187, 95 N.M. 427, 622 P.2d 1047. III. OBJECTIONS. Hearsay admissible if no objection. - Testimony that defendant said, "I was going to do something but I was too scared," while hearsay, was admitted without objection and, therefore, was competent in robbery prosecution. State v. Baca, 1971-NMCA-142, 83 N.M. 184, 489 P.2d 1182. Highly prejudicial hearsay admissible if no objection. - Although testimony was not only hearsay, but made at a time when defendant was not present and was highly prejudicial, this did not deny its admissibility, nor the jury a right to consider it, where there was no objection to its admissibility by defendant. State v. Trujillo, 1955-NMSC-094, 60 N.M. 277, 291 P.2d 315. Hearsay, admitted without objection, is to be considered along with other evidence in determining whether there is substantial evidence to sustain a verdict on appeal, and hearsay evidence may have sufficient probative worth to support a verdict, but this rule does not operate to make objectionable testimony conclusive proof of the matter asserted therein. The fact that it was hearsay does not prevent its use as proof so far as it has probative value, but this is limited to the extent of whatever rational persuasive power it may have. Mere rumor does not constitute substantial evidence. State v. Romero, 1960-NMSC-047, 67 N.M. 82, 352 P.2d 781. Objection must direct court's attention to defect relied upon. - Even if the question is objectionable as calling for hearsay evidence, a ruling by the court will be sustained where the objection is not properly stated and the court's attention not directed to the defect relied upon. Sturgeon v. Clark, 1961-NMSC-125, 69 N.M. 132, 364 P.2d 757. Not objecting to testimony at first trial precludes later attempts. - A failure to object to testimony given at one trial precludes the opponent at any subsequent trial from any further objection, for the reason and to the extent that a failure to object to the testimony before or at the first trial would have precluded him. State v. White, 1956-NMSC-038, 61 N.M. 109, 295 P.2d 1019. Objection not waived where cross-examination elicits same evidence. - Prior to enactment of Rules of Evidence, objection by plaintiff on hearsay grounds to the admission of evidence was not waived where plaintiff, upon cross-examination, elicited the same evidence from the witness. Otherwise, the right of cross-examination would be infringed. Sayner v. Sholer, 1967-NMSC-063, 77 N.M. 579, 425 P.2d 743. Objection not waived where plaintiff tries to rebut hearsay with prior inconsistency. - Prior to enactment of Rules of Evidence, where plaintiff properly objected on hearsay grounds to admission in evidence of a statement made by defendant's decedent to police officer some 24 hours after the accident, but where objection was overruled, plaintiff did not waive this objection when he later requested that statement made by defendant's decedent to the officer at the scene of the accident be admitted to show inconsistency. Sayner v. Sholer, 1967-NMSC-063, 77 N.M. 579, 425 P.2d 743. Mere fact hearsay corroborated does not render admission harmless. - If proper objection was made, the admission of hearsay testimony was prejudicial, was reasonably calculated to cause and may have caused the rendition of an improper verdict, and required reversal. The mere fact that other testimony corroborated, or was corroborated by, the hearsay testimony did not render the error harmless. Sayner v. Sholer, 1967-NMSC-063, 77 N.M. 579, 425 P.2d 743. Law reviews. - For annual survey of New Mexico law relating to evidence, see 12 N.M.L. Rev. 379 (1982). For annual survey of New Mexico law relating to evidence, see 13 N.M.L. Rev. 407 (1983). Am. Jur. 2d, A.L.R. and C.J.S. references. - 29 Am. Jur. 2d Evidence § 658 et seq. Written recitals or statements as within rule excluding hearsay, 10 A.L.R.2d 1035. Consideration, in determining facts, of inadmissible hearsay evidence introduced without objection, 79 A.L.R.2d 890. Admissibility, as against hearsay objection, of report of tests or experiments carried out by independent third party, 19 A.L.R.3d 1008. Admissibility in evidence of sound recording as affected by hearsay and best evidence rules, 58 A.L.R.3d 598. Admissibility of former testimony of nonparty witness, present in jurisdiction, who refuses to testify at subsequent trial without making claim of privilege, 92 A.L.R.3d 1138. Admissibility, as against interest, in criminal case of declaration of commission of criminal act, 92 A.L.R.3d 1164. Admissibility of memorandum of telephone conversation, 94 A.L.R.3d 975. Admissibility of hearsay evidence in probation revocation hearings, 11 A.L.R.4th 999. Admissibility of testimony concerning extrajudicial statements made to, or in presence of, witness through an interpreter, 12 A.L.R.4th 1016. Validity, construction, and application of child hearsay statutes, 71 A.L.R.5th 637. Construction and application of provision of Rule 803(8)(B), Federal Rules of Evidence, excluding from exception to hearsay rule in criminal cases matters observed by law enforcement officers, 37 A.L.R. Fed. 831. Admissibility of hearsay evidence for court's determination, under Rule 104(a) of the Federal Rules of Evidence, of preliminary questions of fact, 39 A.L.R. Fed. 720. 23 C.J.S. Criminal Law § 856 et seq.; 31A C.J.S. Evidence § 259.